North Carolina Probably Can’t Make it a Crime to Hurt Pat McCrory’s Feelings

January 25, 2017 (Fault Lines) – Hello, North Carolina! Welcome back to the United States of America. Sorry about that misunderstanding a few years back. If you look under your seat, you will see your orientation packet, including a big list of dos, like arresting recreational drug users and setting a drinking age, and a muuuuch smaller list of don’ts. Unfortunately, we all have to abide by the rules. No, we don’t like it either.

So if you’ll just check down to the first item on the list? Oh, what was that, North Carolina? No, I’m sorry, we don’t have any spittoons for your chewing tobacco. Those went out of style a long time ago. You can just spit into these hollowed out Federalist Papers we keep on our desk.

Now then, where were we? Oh yes. Rights. So there’s some stuff you’re not supposed to do. No putting people in jail without a judge and a lawyer, for instance. You can’t take people’s homes without paying them something for it. No slavery unless you put the person in prison first. Oh, and this is a big one, you can’t pass laws to keep people from petitioning their government or speaking their minds.

I see a few hands. Yes, is that you, Dan Bishop? Wait, what was that? Are you seriously asking if it’s okay to make it illegal for people “to threaten, intimidate, or retaliate against a present or former North Carolina official in the course of, or on account of, the performance of his or her duties?”

Well, I don’t want to be too hasty here. Context matters. Why exactly do you think that’s a good idea? Oh, I see! Some people were following around the former governor of your state and chanting, “shame,” indicating that they didn’t believe he did a good job. And you believe that the right remedy for this would be to arrest them, put them in handcuffs, and place them in jail for an indeterminate amount of time? I guess to some, that might be the best way to deal with “a chanting mob” and “ubiquitous leftist rioters.”

Well, let’s look at how you’d probably apply that statute. Would it be okay to pass a law making it legal to chant nice things at a government official, stuff like “Waterboarding Forever!” or “Sovereign Immunity Rules,” but illegal to chant anything that you might find intimidating or retaliatory?

As Mark Bennett pointed out, such a law would probably struggle constitutionally. See, he recently won a case in Georgia, West v. State, dealing with a law that prohibited people from “upbraiding, insulting, or abusing” school bus drivers. While the law had a legitimate purpose, preventing people from disrupting school proceedings, it was written so broadly that it ended up affecting a lot of protected speech, including for instance, telling a bus driver that she was doing a bad job picking up your child.

As a result, the Supreme Court of Georgia held that the law was unconstitutional, particularly because there were plenty of good, constitutional laws that could be applied when a parent was acting disruptively in a school setting. Also, because only unpleasant speech was prohibited, it wasn’t content neutral. And that makes it very hard for a speech-related law to survive scrutiny.

The problem with this proposed law, just like Georgia’s, is that it either affects stuff that’s already a crime, like rioting, throwing stuff, stalking, grabbing, or what have you, or else it would prohibit things that we definitely want to constitutionally protect, like hurting Pat McCrory’s feelings. By the way, Pat McCrory, I see you back there. No, I will not call on you. You’re not an elected official any more.

If you want to use the law to stop people from shouting “shame” at Pat McCrory, you’re probably out of luck. As applied, it would probably be held unconstitutional, because yelling mean things at government officials is core political speech. And then all you’d have left would be those little niche uses where a more robust felony statute would do more work. Like, if someone were to grab Pat McCrory by the lapels, spit in his face, and then fraudulently vote against him five times at the annual Former Governor Bikini Contest, there’s probably quite a few statutes to put them away. But the mean words can’t be punished.

Now that we’ve cleared that up, I will open the floor to any other First Amendment complaints. After we address whether people can be punished for being insufficiently solicitous of police officers, failing to say Merry Christmas, and swearing on television, we will move on to addressing the scourge of left-wing political correctness.

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